Updated 23 October 2026
Wills - Potential Problem #37: Overlooking Spouse Rights
A surviving spouse does not automatically receive the family home simply because the couple were married. In NSW, the outcome depends on ownership, the will, the rules applying where there is no effective will, and any successful claim against the estate. Planning should address both the spouse’s housing security and the interests of children or other beneficiaries.
Christine’s perspective: “The spouse gets the house” is my shorthand for bringing housing security into the estate-planning conversation. It is a practical reminder, not a universal legal rule. We still need to establish who owns the home, what the surviving partner needs and whether the proposed arrangements will actually provide that security.
1. Start with ownership of the home
A title search is an essential starting point. Where spouses hold a property as joint tenants, the deceased’s interest ordinarily passes to the survivor by survivorship, outside the will. A Notice of Death records the change on the land register. Probate may still be needed for other assets, even though it is not required solely to register that survivorship.
Where the home is held as tenants in common, the deceased’s share generally forms part of their estate. If the deceased was the sole owner, their interest generally passes through estate administration. Marriage does not itself convert either arrangement into joint tenancy. Legal Aid NSW explains how ownership affects estate assets.
Check the mortgage, any trust arrangements and evidence of another person’s beneficial interest. Registered ownership is important, but it may not settle every equitable ownership question. The home also remains subject to enforceable security interests; leaving it to a spouse does not erase the loan.
In some circumstances, NSW notional estate provisions can allow a family provision order to reach property outside the estate. Survivorship should not be treated as an absolute shield against a claim.
2. Can a spouse be left out of a will
NSW law does not impose a fixed spousal percentage on every valid will. However, a spouse at the date of death is eligible to apply for family provision under section 57 of the Succession Act 2006. A person living in a de facto relationship with the deceased at death can also qualify. Eligibility does not guarantee an award.
The Supreme Court considers whether adequate provision has been made for the applicant’s proper maintenance, education or advancement in life. Housing needs, age, health, financial resources, the relationship, contributions, the estate’s size and competing claims can matter. A spouse’s need for suitable accommodation may be substantial, particularly after a long relationship, without creating an automatic entitlement to a particular house.
A family provision claim can succeed even where the will is valid. It is different from challenging the will for incapacity or undue influence. The usual filing period is 12 months from death, subject to statutory exceptions. Get advice promptly rather than waiting for probate or distribution.
3. A real case about adequate provision for a widow
In Steinmetz v Shannon [2019] NSWCA 114, the deceased left an estate of approximately $6.8 million. His will provided his widow with an indexed annual payment of $52,000 for life, with the residue going to his adult children from his first marriage, subject to that payment obligation.
The trial judge dismissed the widow’s claim, but the Court of Appeal allowed her appeal. The Court ordered a $1.75 million legacy in place of the annuity. The relationship had lasted approximately 28 years, and the widow had provided care during the deceased’s illness.
The decision illustrates that proper provision can extend beyond meeting basic expenses. It does not establish a standard payout, a fixed percentage or a rule that every spouse receives the family home. For a blended family, the practical lesson is to assess the surviving spouse’s actual position rather than assuming any income payment will be sufficient.
4. Different rules apply without an effective will
Intestacy rules govern estate property not effectively disposed of by a will. Assuming there is one surviving spouse, that spouse generally receives the whole intestate estate where the deceased leaves no descendants, or where all the deceased’s descendants are also descendants of that spouse.
Where the deceased leaves descendants who are not also the surviving spouse’s descendants, the spouse generally receives the personal effects, an indexed statutory legacy and half the remaining estate. The other half passes to the deceased’s descendants under the statutory rules. The legacy must be calculated for the relevant death; it is not a permanently fixed dollar figure. NSW Government guidance explains these categories.
A sole surviving spouse may also have a preferential right to acquire estate property, subject to the statutory procedure and payment arrangements. This is not a free entitlement to the home regardless of its value. Multiple-spouse situations require separate analysis.
For intestacy, a qualifying domestic partnership includes a registered relationship, or a de facto relationship lasting at least two continuous years or resulting in a child. The two-year requirement does not apply to de facto family provision eligibility. Sheen v Hesan; The Estate of Zaheer [2023] NSWSC 468 explains this distinction.
5. Review the plan after marriage or separation
Marriage generally revokes an existing will, subject to important exceptions. These include wills made in contemplation of marriage and certain gifts or appointments benefiting the person who is the spouse at death. Have the document checked before relying on an earlier plan.
Divorce generally revokes gifts and specified appointments of the former spouse, subject to the Act and any contrary intention in the will. Separation alone does not have the same effect. An estranged but still married spouse may retain inheritance rights, so moving out or dividing household expenses does not replace a legal review.
A former spouse can also remain eligible to seek family provision, although additional statutory requirements apply. A financial agreement or settlement is not automatically a release of succession claims. Section 95 requires court approval for an effective release of family provision rights. Review the will alongside any family-law settlement.
6. Decide what housing security should mean
An outright gift gives the spouse ownership, with the ability to sell, spend or later leave the asset to someone else. If the intention is to protect the spouse during their lifetime and preserve property for children afterwards, discuss a properly drafted life interest, right of residence or testamentary trust.
These arrangements need practical detail. Who meets the mortgage, rates, insurance and repairs? Can the home be sold and a replacement purchased if the spouse needs to downsize or enter care? What happens during an extended absence? Who manages the arrangement, and when do the children become entitled? A simple instruction allowing the spouse to stay may leave these questions unresolved.
No structure automatically defeats a family provision claim. Nor does an ordinary mirror will necessarily bind the surviving spouse to preserve an eventual inheritance for the first spouse’s children. Explain the intended outcome to your solicitor and assess whether the arrangement is workable for everyone affected.
7. Coordinate the will with the rest of the plan
Superannuation and insurance may materially affect the surviving spouse’s position. Super does not automatically follow the will. Review beneficiary nominations, fund rules and any reversionary pension arrangements. ASIC’s Moneysmart guidance explains eligible recipients and nomination types. If benefits are directed to your legal personal representative, they enter the estate for administration rather than becoming the executor’s personal money.
Bring your existing will, title details, loan balances, super nominations and any financial agreement to the appointment. Describe your family relationships and the resources available to your spouse and children. Include substitute executors and beneficiaries, and review the plan after relationship changes, a death or significant financial changes.
CM Lawyers can review your will and estate plan and advise on contested estates. Contact our Marrickville team to discuss how your spouse’s housing and financial needs can be addressed alongside your other wishes.
This article provides general information about NSW law. Individual advice should address ownership, family circumstances and the documents in force.
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